Breaking: Federal appeals court strikes down DOMA

posted at 10:41 am on May 31, 2012 by Ed Morrissey

Can’t wait to see how this plays in November, along with Barack Obama’s flip-flop on gay marriage:

An appeals court ruled Thursday that a law that denies a host of federal benefits to gay married couples is unconstitutional.

The 1st U.S. Circuit Court of Appeals in Boston said the Defense of Marriage Act, which defines marriage as a union between a man and a woman, discriminates against gay couples.

The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

Here’s the court decision, via ThinkProgress. The court points out that, contra some hysteria among activists, DOMA does not invalidate marriages, but it gives states leeway to disregard marriages performed in other states, and puts the federal government in the position of denying the validity of such marriages — which the court found:

Its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.

DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.3 Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.

The court also ruled that both precedent and equal-protection issues combine against DOMA:

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

The decision also includes a stay as the respondents plan an appeal to the Supreme Court. On its face, it appears that the court supports the idea that states can define marriage any way they like, but that DOMA has so many implications for federal treatment of couples that would then discriminate between states that it can’t be constitutional. Some libertarians and Tenth Amendment supporters disliked DOMA for federalist reasons anyway, so I’d expect a mixed reaction to this decision, tempered by knowledge that the Supreme Court will eventually decide this anyway.

The court didn’t rule on the law’s other provision, which said states without same-sex marriage cannot be forced to recognize gay unions performed in other states.

This looks like a Solomon-like attempt at splitting the baby along federalist lines. If I’m reading this correctly, the court is ruling that the federal government has to recognize marriages performed in states, including same-sex marriages, regardless of whether the couples’ marriage is recognized in the state in which they later reside. However, the states don’t have to recognize the marriages, which may make for some confusion at tax time, but otherwise means that couples get non-discriminatory treatment within each level of government. Perhaps that kind of compromise would carry the day at the Supreme Court as well.